Bombay High Court
Alka H Barde Aka Alka Prabhakar Ghonge vs Sunita Jayant Ghonge on 3 September, 2025
2025:BHC-NAG:8691
Judgment
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.91 OF 2025
1. Sou.Alka H.Barde @ Ku.Alka
Prabhakar Ghonge, aged about 44
years, occupation service, r/o 264/265,
Prasad Apartment, Amba Nagar,
Dighori, Nagpur.
2. Harish Janardhan Barde,
aged about 46 years, occupation private,
r/o 264/265, Prasad Apartment,
Amba Nagar, Dighori, Nagpur.
3. Smt.Padma Prabhakar Ghonge,
aged about 72 years, occupation private,
r/o Sawarmendha, tahsil Saoner,
district - Nagpur.
4. Sonu s/o Janardhan Barde,
aged about 44 years, occupation private,
r/o 264/265, Prasad Apartment,
Amba Nagar, Dighori, Nagpur. ..... Applicants.
:: V E R S U S ::
1. Smt.Sunita Jayant Ghonge,
aged about 49 years,
occupation : household,
r/o c/o P.P.Lunge, plot No.101,
New Subhedar Layout, Nagpur.
2. State of Maharashtra. ..... Non-applicants.
.....1/-
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2
Shri D.V.Mahajan, Counsel for the Applicants.
Mrs.Seema Dhotre, Counsel for NA No.1.
Shri Amit Madiwale, Additional Public Prosecutor for NA
No.2/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 08/08/2025
PRONOUNCED ON : 03/09/2025
JUDGMENT
1. Heard learned counsel Shri D.V.Mahajan for the
applicants, learned counsel Mrs.Seema Dhotre for the
non-applicant No.1, and learned Additional Public
Prosecutor Shri Amit Madiwale for the State. Rule. Rule
made returnable forthwith.
2. The present application is filed under Section
482 of the CrPC (528 of the BNSS) by claiming following
reliefs:
(i) quash and set aside the proceedings bearing Regular
Criminal Case No.618/2022 pending on the file of
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learned Judicial Magistrate First Class, Corporation Court
No.2, Nagpur (Annexure-B);
(ii) further quash and set aside impugned order dated
30.5.2024 passed in Regular Criminal Case No.618/2022
by the learned Judicial Magistrate First Class,
Corporation Court No.2, Nagpur (Annexure-B);
(iii) stay the further proceeding of Regular Criminal Case
No.618/2022 pending on the file of learned Judicial
Magistrate First Class, Corporation Court No.2, Nagpur
(Annexure-B), during the pendency of present
application;
(iv) grant ad-interim relief in terms of prayer clause (iii),
and
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459 apl459.25.odt
(v) grant any other relief which deems fit in the facts and
circumstances of the present case in the interest of
justice.
3. Brief facts necessary for disposal of the applciation
are as under:
Non-applicant No.1 is legally wedded wife of Jayant
(the deceased) and their marriage was solemnized on
8.3.2010. Due to the discord between them, she left the
house and was staying separately. The deceased was
owner of plot situated at mauza Gorewada, Nagpur,
having khasara Nos.20/3 and 20/4 bearing plot no.75.
Applicant No.1 is her sister-in-law, applicant No.2 is
husband of applicant No.1, applicant No.3 is her mother-
in-law, and applicant No.4 is brother of applicant No.2.
4. The wife filed a complaint on an allegation
that taking advantage of serious illness of her husband,
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who was suffering from cancer, the applicants got
executed Power of Attorney and a Registered Will in their
favour on 18.2.2019. The applicant misrepresented the
property in dispute and in collusion prepared false report
and not paid single pie to her and not borne the medial
expenses. They have sold out the said property and
misappropriated the consideration amount and,
therefore, she approached to the Court of JMFC by filing
application under Section 156(3) of the CrPC. The JMFC
has issued process against the applicant.
5. Being aggrieved and dissatisfied with the
same, the present application is filed on the ground that
allegations levelled against them are baseless as the sale
deeds are executed by the deceased. The statement
recorded of the deceased itself shows that he himself sold
the properties and utilized the said amount for his own
expenses. It was the deceased who executed the sale
deed and, therefore, no prima facie case is made out
.....5/-
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against the applicants for issuance of process and,
therefore, order of issuance of process as well as the
entire prosecution against them deserves to be quashed
and set aside.
6. Learned counsel for the applicant reiterated
the said contentions and invited my attention to the sale
deeds executed by the deceased himself and submitted
that the sale deeds are executed by the deceased. The
consideration is also accepted by him, which is
substantiated by his statement, which discloses that as he
was suffering from cancer and he was not having
sufficient means, he sold out plots situated at Gorewada,
Nagpur as well as he executed the sale deed of his
agricultural field to utilize the amount for his medical
expenses. Thus, he submitted that recital of the
statement and the sale deeds shows that no prima facie
case is made out against the present applicants. In view
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of that, the complaint and the prosecution deserve to
quashed.
7. Per contra, learned counsel for non-applicant
No.1 supported the order passed by learned JMFC and
submitted that considering the allegations against the
applicants, the case is made out under Sections 403, 405,
406, 415, 417, 419, 420, 425, 427, 440, 503, and 506 of
the IPC and issued process.
8. On hearing both the sides and perusing the
record, it reveals that the deceased and non-applicant
No.1 are husband and wife. The deceased executed a
Will in favour of applicant No.1. The said Will is attested
by two witnesses. Whether the said Will is genuine or
not, requires to be considered by the Civil Court.
Admittedly, the sale deeds placed on record show that the
said sale deeds are executed by the deceased himself. As
per the allegations in the complaint, applicant Nos.2 and
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3 insisted the husband of non-applicant No.1 to execute
the Power of Attorney and Will in favour of the applicant
No.2 by deceiving him. After executing the above said
documents, the applicant No.3 searched customers for
the plot and the deceased executed sale deeds and
thereby duped the deceased as well as the non-applicant
No.1. Perusal of the documents reveals that the Power
of Attorney was executed. Recital of the Will shows that
he has executed the said Will with an intention to have
smooth relationship between his family members after
his death And there should not be any dispute amongst
them and thereby bequeathed his property to the
applicant No.1 after his death. His statement recorded by
the police in other criminal complaint, especially by
Hudkeshwar Police, wherein he has specifically stated
that he has sold out plot and agricultural land for
incurring expenses for his medical treatment.
.....8/-
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9. Thus, prima facie material sufficiently shows
that the properties are sold out by the deceased himself
and he obtained the amount.
10. The powers under Section 482 of the CrPC are
very wide. The court has to exercise powers cautiously
especially when there is abuse of process of law. Though
inherent powers of this court under Section 483 are wide
in amplitude, yet they are not unlimited. No absolute
Rule is laid down as to the exercise of the said powers
where the allegations in the FIR or the complaint taken at
their face value and accepted in their entirety do not
prima facie constitute the offence alleged. It would be
justifiable in invoking its powers under Section 482 of the
Code to quash criminal proceedings.
11. Perusal of the order passed by learned JMFC
shows that it is only recorded that the complainant has
prayed for issuance of process against the accused. It is
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alleged that they have committed offence by way of
misappropriation of the disputed property and amount
and thereby committed breach of trust and thereby
issued process. In fact, this allegation itself is not
substantiated in the light of the statement of the
deceased himself recorded in another criminal
proceeding registered on the complaint of the non-
applicant No.1. In the light of the said statement, no case
is made out showing that it was the applicants who got
executed the said Will or insisted the deceased to execute
the sale deeds and utilize the amount.
12. Perusal of the entire record shows that no
prima facie material is brought on record to substantiate
the allegations as no offence is made out and the learned
JMFC has not recorded the reasons on what basis he
came to conclusion as to the prima facie satisfaction that
the applicants have committed the offence. Continuation
of the criminal proceeding in absence of any material
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would be abuse of process of law. Issuing of the
summons is a serious act. While issuing process, learned
JMFC ought to have considered as to whether there is
any prima facie material for issuance of process and the
satisfaction requires to be recorded which is absent in the
present case and, therefore, continuation of the criminal
proceeding against the applicants would lead to abuse of
process of law.
13. In this view of the matter, I proceed to pass
following order:
ORDER
(1) The Criminal Application is allowed.
(2) The proceeding bearing Regular Criminal Case
No.618/2022 pending on the file of learned Judicial
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Magistrate First Class, Corporation Court No.2, Nagpur is
hereby quashed and set aside.
(3) The order of issuance of process is also quashed and
set aside.
Rule is made absolute in the above said terms.
Application stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge .....12/-
Date: 04/09/2025 11:09:08
